State ex rel. Davie v. Callahan - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. DAVIE v. CALLAHAN, JUDGE.
[Cite as State ex rel. Davie v. Callahan (1997), ___ Ohio St.3d ___.]
Motion to dismiss sustained.

(No. 97-1826 -- Submitted October 20, 1997 -- Decided December 10,
1997.)

IN PROCEDENDO.

ON MOTION TO DISMISS.
__________________

Michael D. Davie, pro se.
Maureen
O'Connor, Summit County Prosecuting Attorney, and Paul
Michael Maric, Assistant Prosecuting Attorney, for respondent.
__________________

The motion to dismiss is sustained, and the cause is dismissed.

MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

PFEIFER, COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

LUNDBERG STRATTON, J., dissenting. I respectfully dissent. Based on the
record before this court, I would grant relator Michael Davie's petition for a writ
of procedendo.1

Davie filed a motion for postconviction relief on April 4, 1996. On
December 12, 1996, Davie filed a motion to amend his motion for postconviction
relief. On January 21, 1997, the respondent ordered that Davie's "motion to
amend Petition for Post-conviction relief * * * is not well taken and is hereby
denied." (Emphasis added.)

On June 5, 1997, Davie filed a petition for a writ of procedendo seeking to
compel the court to rule on his motion for postconviction relief. On June 6, 1997,

the court denied Davie's petition for a writ of procedendo. In the order the court
stated, "IT IS HEREBY ORDERED that the Defendant's Motion is without merit
and is hereby DENIED. The Defendant's post-conviction relief was denied on
1/21/97 and is dispositive as to both this motion and the preceding motion for
summary judgment."

An examination of the court's January 21, 1997 order reveals that it denied
only the motion to amend. Therefore, Davie's motion for postconviction relief has
now been pending for almost a year.2 A year is an excessive amount of time for a
motion to remain pending absent extraordinary circumstances. Further, it does not
appear that the respondent intends to rule on the motion in that the respondent
believes that Davie's motion was denied in the January 21, 1997 order.

A writ of procedendo may lie where an inferior court fails to timely dispose
of a pending action. State ex rel. Levin v. Sheffield Lake (1994), 70 Ohio St.3d
104, 110, 637 N.E.2d 319, 324. Accordingly, since the respondent has failed to
timely rule upon Davie's motion and Davie has no other plain and adequate
remedy in the ordinary course of law, I would issue a writ of procedendo in this
case.

PFEIFER and COOK, JJ., concur in the foregoing dissenting opinion.
FOOTNOTES:
1.
I recognize that the record before this court is limited to the parties' brief
and attachments.
2. In
State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35, 656 N.E.2d
332, 333-334, this court essentially held that the determination of whether a court
unduly delayed ruling on a motion should be measured from the date of the last
motion filed by the petitioner which pertains to the original motion (excluding any
motions to compel or motions seeking writs). In the case at bar, I would determine

2